Welch v. State

Appellant has filed a motion for rehearing, in which he insists that we erred in stating that no proper bill had been reserved to the introduction of the shirt in evidence, and refers to bill No. 5, which reads as follows:

"Be it remembered that upon the trial of the above entitled cause, the following proceedings were had, to wit: While the witness George Holman was testifying in behalf of the State the shirt which deceased wore at the time he was killed by the defendant was exhibited to said witness, which shirt was very bloody and the said witness was asked the following question, to wit:

"Q. ``Mr. Holman, I will get you to look at the left sleeve of that shirt and state what is on it, if anything, what do you call it?' A. ``I call them sleeve holders.'

"Q. ``Where is the sleeve holder of the left sleeve?' Whereupon the defendant by his attorneys made the following objections, to wit: Defendant objects, it is immaterial and inadmissible because there is no proof now, that where they are now is where they were on it then nor when they were put on it; who has had it in their possession and who has adjusted those things, if anybody. The clothing of the deceased are only admissible to locate the wound and can not be admitted for any other purpose and it is hearsay and the courts go further and say that the clothing should never be permitted to be introduced unless necessary to locate the wound and never admissible except for that purpose and they go further and say should never be admitted unless necessary to locate the wound.

"Defendant saves a bill of exceptions to the State exhibiting this bloody shirt to the jury and offering it in the presence of the jury further, on the ground that there is no contention yet or any controversy as to the location of the wound and no necessity for it."

In approving the bill the court says: "The foregoing bill of exceptions is hereby allowed and ordered filed as a part of the record in this case, as defendant's bill of exceptions No. 5, with this explanation, that the court will see from an examination of the testimony that there was a controversy about the position deceased was in when he was shot, the State contending that the defendant had deceased by the wrist pulling him (deceased) at the time the shot was fired and the defendant contending that the deceased had a stick drawn in a striking attitude when he fired."

It will be seen that the bill itself does not show that the shirt was introduced in evidence. All it says is: "That the defendant objected to the State exhibiting it to the jury and offering it in the presence of the jury." In the case of Wilson v. State, 32 Tex.Crim. Rep., it was held that a bill of exceptions which merely recites that the evidence was offered bythe State, but which does not affirmatively show that the evidence was admitted, is wholly insufficient, and the court on appeal will not be called upon to determine the admissibility of such testimony. (See also Rogers v. State, 34 Tex. Crim. 612; Thompson v. State, 33 Tex.Crim. Rep.; Simms v. State, 32 Tex.Crim. Rep.). In this bill it is only shown that the State exhibited the shirt and offered it in evidence, and it does not appear that it was introduced. In passing on this bill in the original opinion, we discussed it from the standpoint as to whether or not the State had the right to show that the shirt at the time deceased was killed was pulled down over his hand, and held that it did. If it was necessary to show the position of deceased at the time he was killed, the shirt or anything else which would demonstrate that to the jury would be admissible. As said in the original opinion, appellant's contention was that deceased held a stick in his hand, and had it drawn back ready to strike when he shot. The State's testimony is that deceased had no stick, but that appellant had him by the wrist, and drew him towards his wife, from whom he obtained the pistol, and while holding deceased in that position, shot him to death. If in order to locate deceased's position and attitude at the time of the killing, in connection with the wound on the body, and the hole in the shirt made by the bullet, it was necessary to take the shirt and describe its position on the body at the time he was shot, all such evidence would be admissible. While it is true that a shirt, or other garment, is not admissible unless it serves some useful purpose in depicting to the jury the location of the wound, or the attitude of the parties at the time of the difficulty, yet if the shirt served the purpose of enabling the jury to better pass on the question of whether the State's or appellant's contention as to the attitude of deceased at the time he was killed was correct, there was no error in admitting it, if it was admitted in evidence. In the case of Milo v. State, 59 Tex. Crim. 196, 127 S.W. Rep., 1025, this court held that it is permissible to introduce bloody clothing when its introduction serves to illustrate some point or solve some question, or throw light upon the matter connected with the proper solution of the case, and when the clothing, in the light of the whole case, would aid the jury in arriving at the very truth of the matter, the court should not hesitate to admit its production. (See also Adams v. State, 48 Tex.Crim. Rep.; Sue v. State, 52 Tex. Crim. 122; Dobbs v. State, 54 Tex.Crim. Rep.; Long v. State, 46 S.W. Rep., 640; Williams v. State, 60 Tex. Crim. 453, 132 S.W. Rep., 345; King v. State, 13 Texas Crim. App., 277.)

The only other ground in the motion for rehearing is that notwithstanding appellant requested no special charges in regard to the remarks of counsel for the State complained of, yet this court should reverse the case any way, because of such remarks. We are not prepared to overrule the long line of decisions holding otherwise, especially in view of the fact that the court in his main charge instructed the jury not to consider the only remarks that could be said to be objectionable, without request from counsel. In addition to the authorities cited in the original opinion, see section 170, Buckley's Digest, Argument of Counsel, wherein will be found cited a long list of cases decided by this court.

The motion for rehearing is overruled.

Overruled.